Gurmail Chand vs Ashok Verma

M.M. Kumar, J.—This petition filed under Article 227 of the Constitution of India prays for quashing the order dated 12.2.2004 passed by

the Civil Judge (Jr. Division), Chandigarh dismissing the application of the defendant-petitioner wherein objection was raised with regard to the

sequence of examination of witnesses of the plaintiff-respondent by relying on the provisions of Order XVIII Rule 3A of the Code of Civil

Procedure, 1908 (for brevity ''the Code''). It is appropriate to mention that plaintiff-respondent has filed a civil suit for permanent injunction against

the defendant-petitioner restraining him from interfering in the possession of the suit land allegedly owned by him. Plaintiff-respondent has produced

the first witness who was examined-in-chief on 12.6.2003 and on the request of the counsel for the defendant-petitioner the examination-in-chief

was deferred and he was cross-examined on 5.9.2003. Thereafter the plaintiff-respondent examined another witness also, the order passed by the

learned Civil Judge reads as under:

Heard. Certainly provisions of Order XVIII Rule 3A CPC requires contesting party to be examined first before he or she examines his remaining

witnesses. It is also required that when it is not done, the court shall record reasons. However, in the instant case, first witness was examined-in-

chief on 12.6.2003 and their cross-examination was deferred on the request of ld. counsel for defendant on both occasions. Subsequently, PW1

was cross-examined on 5.9.2003. Though case was adjourned to 13.11.2003 for PWs but on that day case again adjourned to 22.12.2003. Cost

paid. On the undertaking given by ld. counsel for the petitioner, case is adjourned to 22.12.2k3 for PWs subject to payment of Rs. 500/-. Ld.

counsel for the defendant received the costs of Rs. 500/- on the very same day. Since on dated 22.12.2003 the undersigned was on leave, so case

adjourned to 12.2.2004 i.e. for today. In between on dated 13.11.2003, defendant moved the present application. To my mind, if the defendants

had any grievance regarding sequence of examination of plaintiff, she should have objected to it on the very day of examination of first witness or

even on the next date of hearing at the time of examination of second witness. He even cross-examined, the first witness and further accepted the

cost of Rs. 500/- as there was no witness of plaintiff on that day. Not only this, he also sought repeated adjournments for examination of plaintiffs

witness. Now after receiving costs and letting two witness box, the defendant is estopped by his own act and conduct to raise this point, more so

when plaintiff is present in the court for his examination. Accordingly objection is disallowed.

Shri Mahesh Gupta learned counsel for the defendant - petitioner has argued that the provisions of Order XVIII Rule 3A of the Code are

mandatory in character and the sequence of examination of witnesses could not be changed. Accordingly, the learned counsel submits that the

party i.e. the plaintiff-respondent should himself have taken the witness stand first as his own witness unless he was able to convince the Court for

deferring his examination for a later date by allowing the examination of other witnesses. Learned counsel has further argued that the reasoning

adopted by the Civil Judge suffers from inherent fallacy in so far as it has been said that the defendant - petitioner had failed to object to the

appearance of other two witnesses at the stage of their examination and in fact happily cross-examination them because in the list of witnesses the

plaintiff/respondent was not cited as a witness. Therefore, the order, of the ld. Civil Judge is liable to be set aside.

Having heard the learned counsel at some length. I am of the considered view that this petition is liable to be dismissed. Order XVIII Rule 3A of

the Code which is relevant for deciding the instant petition read as under:

Order XVIII. Hearing of the suit and examination of witnesses.

3.A. Party to appear before other witnesses.-

Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined. Unless the

Court, for reasons to be recorded, permits him to appear as his own witness at a later stage.

A perusal of the above Order shows that the Civil Judge for reasons to be recorded in writing could always defer the examination of the parties

to the litigation. It also shows that party to the litigation has to be examined first unless there are reasons recorded by the Civil Judge for not

adopting such a course. In the instant case, two witnesses have already been examined by the plaintiff-respondent and no objection was raised by

the defendant - petitioner for insisting that the plaintiff-respondent should first take the witness stand in accordance with Order XVIII Rule 3A of

the Code. It appears that the afore-mentioned reasoning adopted by the Civil Judge does not suffer from any legal flaw.

The argument of the learned counsel that me plaintiff-respondent was not cited as a witness has not impressed me because it goes without saying

that the plaintiff could prove the averments made in the plaint by appearing as his own witness. Merely, because his name was not cited in the list of

witnesses would not mean that an opportunity to raise the objection with regard to the sequence of examination of witnesses has been lost,

Moreover under Order XVI Rule 1(3) read with Rule 1A, a witness can always be examined without being summoned and it would not be a valid

ground to discard the testimony of such a witness. In this regard reference may be made to the judgment of the Supreme Court in the case of

Vidhyadhar Vs. Manikrao and Another, (at PP 588-589). Therefore, the argument is without any merit.

For the reasons recorded above, this petition fails and the same is dismissed.